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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

T, Territories and New States.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Territories and New States.

Article IV, section 3 of the Constitution empowered Congress to make appropriate “Rules and Regulations” for federal territory and provided that new states “may be admitted by the Congress into this Union.” The permissive character of the latter clause was the source of considerable controversy: despite the promises of the *Northwest Ordinance (1787), Congress was apparently under no constitutional obligation to create new states. Advocates of territorial rights resisted this implication, insisting that Congress governed the territories as trustee for the future new states. In *American Insurance Co. v. Canter (1828), the Supreme Court sought to avoid such issues, however, and deferred to Congress’s “general right of sovereignty” over the territories (p. 545).

Until the *Civil War, debate over the status of slavery in the territories tended to subvert congressional authority. Efforts by antislavery congressmen to block Missouri’s admission as a slave state (1819–1820) precipitated the first great intersectional crisis. The resulting Missouri Compromise preserved the sectional balance in the Senate by linking Missouri’s admission as a slave state to that of Maine as a free state. By excluding slavery in federal territory above 36°30′, the compromise was meant to preempt controversy over the status of subsequent new states. But the annexation of extensive territory south of the compromise line as a result of the Mexican War (1846–1848) jeopardized this tenuous intersectional accord. In July 1848 the Senate adopted the Clayton Compromise, inviting the Supreme Court to decide the status of slavery in California and New Mexico on appeal from territorial courts. Although the House rejected the Clayton formula at this time, Congress’s unwillingness to take responsibility for the slavery issue was apparent in its reliance on “popular sovereignty” in organizing territorial governments for Utah and New Mexico in 1850 and Kansas and Nebraska in 1854. By repealing the Missouri Compromise and establishing the principle of congressional nonintervention, the Kansas-Nebraska Act invited the Supreme Court to take a decisive role in determining the future of slavery in the territories. In Dred *Scott v. Sandford (1857), Chief Justice Roger B. *Taney declared the Missouri Compromise unconstitutional and guaranteed slave “property” throughout the territories.

Taney’s challenge to congressional authority ran counter to the long-term development of the territorial system. The crucial mechanism for extending the union was the congressional enabling act, authorizing a state constitutional convention and setting forth terms of admission. The subsequent negotiations over conditions of admission were “political” transactions, the Court affirmed, and therefore beyond its purview (Scott v. Jones, 1847). The most important conditions were designed to protect federal property interests. Although the public-land states resented a continuing federal presence after statehood, generous land grants and the rapid distribution of federal lands muted complaints about their supposedly unequal condition. Of course, all states were interested in preserving the principle of state equality, and this was the most significant limitation on congressional authority over new state creation.

After the Civil War the Supreme Court significantly expanded its authority over territorial government and the process of new state formation. The principle of new state equality finally achieved constitutional standing in 1911 when, in *Coyle v. Smith, the Court overturned a condition in the congressional enabling act prohibiting the new state of Oklahoma from moving its capital city before 1913.

Over the course of the nineteenth century citizens of the territories gained the full range of constitutional guarantees, thus effectively limiting congressional “sovereignty.” At the same time, Congress relaxed its control over territorial politics and extended the scope of self-government; the Wisconsin Organic Act (1836) replaced the (p. 1011) Northwest Ordinance as the basic model for congressional rule.

The growth of federal power made possible the recognition of territorial rights and limitations on congressional authority. Significantly, however, the Constitution did not necessarily follow the flag to new overseas territories, and even “incorporated” territories that could claim the full range of constitutional rights could not look forward to statehood and membership in the union (*Insular Cases, 1901–1904).

See also political questions.

Peter S. Onuf, “Territories and Statehood,” in Encyclopedia of American Political History, edited by Jack P. Greene, vol. 3 (1984), pp. 1283–1304.

Peter S. Onuf